The Secret to Modding Apps Without Going to Jail - A Legal Experts Opinion.

Recently A coder friend of mine , was served a legal notice from one of the gaming companies for MODDING one of their Apps and distributing it....

I helped him deal with his issue, but I also realized that many of you techies might be doing the same thing, or planning to make money from your mods for games and apps. You might be worried about the complex EULA (end user license agreements) and other legal pitfalls, especially when those apps or games belong to some big multinational corporations. So, read below where I explain all the legal aspects in a simple and non-technical way. I will tell you what you can and what you cannot do while modding apps.”What you expect to learn from this article?

• In this article, I will try to answer some of these questions and provide some guidance on how to mod apps legally and ethically.
• I will also explain some of the legal concepts and principles that are relevant for this topic, such as fair use, exhaustion, essential facilities, public policy, and unconscionability.
• I will also cite some examples of national and international laws and cases that deal with this issue.

What is modding an app?

Modding an app is the act of modifying or enhancing an app that is created by someone else. Modding can involve changing the code, design, content, or functionality of the app, or creating a new or derivative work based on the app. Modding can be done for various purposes, such as personal use, research, education, interoperability, accessibility, etc.

For example, you may want to mod a gaming app like PUBG Mobile?to add some custom skins or weapons that are not available in the official version.?Or you may want to mod an app like Instagram?to download photos and videos from other users’ profiles or stories that are otherwise not possible.

Some examples of apps that were officially modded and the modders sold them :

• WhatsApp Plus: This was a modded version of WhatsApp, the popular messaging app, that offered more features and customization options, such as themes, fonts, emoticons, etc. The modder, Rafalense, sold the app to another company, OGMods, which continued to develop and distribute it. However, WhatsApp banned the users of WhatsApp Plus from its service, and later acquired the app from OGMods and shut it down.
• Flappy Bird Family: This was a modded version of Flappy Bird, the viral game app that was removed from the app stores by its developer, Dong Nguyen. The modder, Bay Tek Games, added new features and modes to the game, such as multiplayer and power-ups. The modder sold the app to Amazon, which made it available exclusively on its Fire TV platform.
• SnapSave: This was a modded version of Snapchat, the popular photo and video sharing app, that allowed users to save the snaps they received without notifying the sender. Later a website similar to SnapSave and offering similar services i.e, Snapsaved.com, was hacked and leaked thousands of private snaps online, causing a scandal and a lawsuit.

What are the legal risks of modding an app?

Modding an app may involve legal risks if it violates the rights or interests of the app developer or provider, or if it harms the public interest. Some of the legal risks are:

• Infringement of intellectual property rights: The app developer or provider may own the intellectual property rights (such as patents, copyrights, trademarks, etc.) of the app and its content. Modding the app may infringe these rights if it copies, uses, or distributes the app or its content without permission or payment.?This may give rise to a claim for damages under Section 55 of the Indian Copyright Act?or Section 108 of the Indian Patents Act.

For example, in 2019, PUBG Corporation filed a lawsuit against NetEase for allegedly copying its game PUBG Mobile in two other games called Rules of Survival and Knives Out. The lawsuit claimed that NetEase had infringed PUBG Corporation’s copyrights and trademarks by copying various elements such as maps, weapons, vehicles, characters, etc.

• Breach of contract: The app developer or provider may have a contract with the user that sets out the terms and conditions for using the app. This contract may be in the form of an EULA that comes with the app. Modding the app may breach this contract if it violates any of its terms or conditions.?This may give rise to a claim for damages under Section 73 or 74 of the Indian Contract Act6.

For example, in 2018, Instagram updated its EULA to prohibit users from scraping data from its platform without its permission. The EULA also stated that users who violate these terms may face legal action from Instagram. This means that modding Instagram to download data from other users’ profiles or stories may breach this contract and expose modders to potential lawsuits.

• Violation of policies: The app developer or provider may have policies that govern the use of the app. These policies may be in the form of guidelines, rules, standards, etc. Modding the app may violate these policies if it goes against the purpose, spirit, or quality of the app.

For example, in 2017, Nintendo banned several users from accessing its online services for modding their Switch consoles8.?The company stated that modding was a violation of its user agreement and code of conduct, and that it could harm the security and functionality of its devices and games.

What are the legal defenses for modding an app?

Modding an app may have legal defenses if it does not amount to violation of rights or interests, or if it serves a legitimate purpose or interest. Some of the legal defenses are:

• Fair use or fair dealing: This is a legal principle that allows the use of copyrighted works without permission or payment under certain circumstances, such as for criticism, comment, news reporting, teaching, scholarship, research, etc. This principle may enable modding an app for non-commercial or educational purposes. This principle is based on the legal maxim de minimis non curat lex (the law does not care for trifles), which means that minor or insignificant violations are not actionable.?For example, in Sega Enterprises Ltd v Accolade Inc, a US court held that Accolade’s reverse engineering of Sega’s video game console to create compatible games was fair use and not infringement. The court applied a four-factor test for fair use, which included the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect of the use on the potential market. The court held that Accolade’s use was transformative and non-exploitative, and that it did not harm Sega’s market.
• Exhaustion or first sale: This is a legal principle that limits the rights of the intellectual property owner after the first sale or distribution of the product. This principle may enable modding an app after purchasing or downloading it legally. This principle is based on the legal maxim nemo dat quod non habet (no one can give what he does not have), which means that a person cannot transfer a greater right than he himself possesses.?For example, in Impression Products Inc v Lexmark International Inc, a US court held that Lexmark’s patent rights were exhausted after it sold its printer cartridges to customers, and that it could not sue Impression Products for reselling or refurbishing them. The court ruled that once a patentee sells an item, it can no longer control what happens to it through patent law. The court also held that Lexmark’s contractual restrictions on its customers were not enforceable under patent law.
• Essential facilities: This is a legal principle that requires the owner of an essential facility to grant access to competitors on reasonable and non-discriminatory terms. This principle may enable modding an app to achieve interoperability with other products or services. This principle is based on the legal maxim ubi jus ibi remedium (where there is a right, there is a remedy), which means that the law provides a remedy for every wrong. For example, in Microsoft Corp v Commission, a European court upheld a decision by the European Commission that Microsoft had abused its dominant position in the market by refusing to supply interoperability information to its competitors and by tying its Windows Media Player with its Windows operating system. The court rejected Microsoft’s argument that disclosing such information would infringe its intellectual property rights and harm its innovation incentives. The court held that Microsoft’s conduct violated Article 82 of the EC Treaty (now Article 102 TFEU) which prohibits any abuse by one or more undertakings of a dominant position within the common market.
• Public policy: This is a legal principle that invalidates any contract or clause that is contrary to the public interest or welfare. This principle may enable modding an app to protect the rights or interests of the users or the society. This principle is based on the legal maxim ex turpi causa non oritur actio (no action arises from an immoral cause), which means that the law does not enforce an illegal or immoral contract or clause. For example, in Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly, the Supreme Court of India held that a clause in a service agreement that allowed the employer to terminate the services of permanent and confirmed employees by giving three months’ notice or pay in lieu thereof was unconscionable and opposed to public policy.

How to mod apps legally and ethically?

To mod apps legally and ethically, one should follow these steps:

• Check the EULA: Before modding an app, one should read and understand the EULA that comes with the app. The EULA may contain clauses that prohibit or restrict modding the app or its content. One should respect and comply with these clauses if they are valid and enforceable.

Challenge the EULA: If one finds the EULA to be invalid or unenforceable, one may challenge it on various grounds, such as unconscionability, public policy, etc. Unconscionability means that the EULA is so unfair or oppressive that it shocks the conscience of the court. Public policy means that the EULA is contrary to the public interest or welfare. One may have to prove that the EULA has both procedural and substantive unconscionability, or that the EULA violates any fundamental rights or interests. For example, in Nandlal Jaiswal v. State of Madhya Pradesh, the Supreme Court of India held that a clause in a liquor license agreement that allowed the government to cancel or suspend the license without giving any reason or opportunity of hearing was unconscionable and opposed to public policy.

• Invoke the exceptions or limitations: If one finds the EULA to be valid and enforceable, one may invoke the exceptions or limitations that may allow modding the app under certain conditions, such as fair use, exhaustion, essential facilities, etc. One may have to prove that the modding falls within the scope and purpose of these exceptions or limitations, and that it does not harm or damage the app developer or provider or the public interest.
• Seek permission or consent: If one finds the EULA to be valid and enforceable, and if there are no exceptions or limitations that apply, one may seek permission or consent from the app developer or provider to mod the app. One may have to explain the reason and purpose of modding the app, and agree to any terms or conditions that the app developer or provider may impose.
• Be responsible and respectful: Regardless of the legal status of modding an app, one should be responsible and respectful when doing so. One should not mod an app for malicious or illegal purposes, such as hacking, stealing, spying, etc. One should not mod an app in a way that compromises its security or functionality, or exposes it to risks or threats. One should not mod an app in a way that infringes the rights or reputations of others, or harms the public interest. One should also acknowledge and credit the original app developer or provider when modding an app.

Conclusion

• Modding an app can be a fun and rewarding activity for tech-savvy programmers and developers. However, it can also involve legal risks and challenges if it violates the rights or interests of the app developer or provider, or if it harms the public interest. Therefore, one should be aware of the legal aspects of modding an app, and follow the steps and guidelines outlined in this article to mod apps legally and ethically. By doing so, one can enjoy the benefits of modding apps without fear of legal backlash.
• Also above is intended to just update you, educate you and inform you about the legal pros and cons of modding, Don't take it as a legal advice as usually legal advice is more nuanced researched and tailor made to each case, also above is just a educational article on Linkedin don't expect me to do thorough check of legal precedents and its corresponding legal sections and other due diligences, so even though I have taken all the care which requires of just an informational article , it might not be as good as you can expect from a professional paid legal advice.

Bibliography

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